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Communtity Law Manual | Legal aid | The decision whether to grant civil/family legal aid

Civil/family legal aid

The decision whether to grant civil/family legal aid

Decisions about whether an applicant is eligible for legal aid are the responsibility of the Legal Services Commissioner. Although employed by the Ministry of Justice, the commissioner is required by the Legal Services Act to make these decisions independently of the ministry and the government. In most cases, this power will be delegated to a legal aid grants officer in the local regional office.

Factors taken into account

Legal Services Act 2011, s 10

In deciding whether to grant civil/family legal aid, the commissioner takes into account a number of factors, including:

  • the applicant’s financial circumstances
  • whether there are reasonable grounds for taking or defending or being part of the proceedings
  • the cost of the case
  • the applicant’s likelihood of achieving a successful outcome
  • when it’s an appeal, or a case taken to the Family Court, whether granting legal aid would be justified.

Financial circumstances

Legal Services Act 2011, s 10; Legal Services Regulations 2011, regs 5–9

The Legal Services Commissioner will not grant legal aid if the applicant’s income and disposable capital are over the specified thresholds, unless there are special circumstances relating to the likely cost of the proceedings, or to the applicant’s ability to pay for the proceedings if legal aid is not granted.

To qualify for civil/family legal aid, you can’t earn more than the following amounts:

  • $23,820 per year for a single applicant
  • $37,722 per year for an applicant with a spouse or partner; or with one dependent child
  • $54,245 per year for an applicant with a spouse or partner and one dependent child; or with two dependent children
  • $61,642 per year for an applicant with a spouse or partner and two dependent children; or with three dependent children
  • $68,882 per year for an applicant with a spouse or partner and three dependent children; or with four dependent children
  • $77,002 per year for an applicant with a spouse or partner and four dependent children; or with five dependent children. If an applicant has more than five dependent children, or has a spouse or partner and more than four dependent children, their maximum level of income is calculated by adding a further $7,124 for each additional child.

Generally, the applicant’s income is their total gross income for the year. However, some welfare benefits are not counted as income.

To be eligible for civil/family legal aid, applicants must not have more than $3,500 of disposable capital. If the applicant has a spouse or partner, or one or more dependent children, the maximum level of disposable capital for that applicant is calculated by adding an allowance of $1,500 to that $3,500.

Disposable capital is the value of any assets owned by the applicant, after deducting:

  • any debts
  • the value of the equity the applicant has in their home up to a specified value ($80,000)
  • the value of any interest the applicant has in their main car for personal use
  • the value of the applicant’s furniture, appliances, clothing and tools of trade
  • the value of any contingent liabilities of the applicant that may mature within the next six months (for example, if the applicant has guaranteed a loan and they may need to repay it within the next six months)
  • the value of what is in dispute in the proceedings, excluding any part of it that the commissioner decides should be included in the assessment of the person’s total assets.

    Note: The resources of the applicant’s spouse or partner are also taken into account, unless the couple are living apart or they have conflicting interests in the case.

If a person is on a benefit, they will usually qualify for legal aid.

Whether the grant is justified

Legal Services Act 2011, s 10, and Schedule 2

The Legal Services Commissioner may refuse to grant legal aid to an applicant in most types of Family Court proceedings or in the case of an appeal, if the commissioner considers that the grant of legal aid is not justified. The commissioner may refuse to grant legal aid if the applicant is not meeting their repayment requirements for a previous legal aid grant.

In those cases, the commissioner must consider the following factors when determining whether a grant of legal aid is justified:

  • any previous proceedings on the matter to which the application relates
  • any personal protection issues (such as family/domestic violence, protection of personal property rights, compulsory treatment, or compulsory care)
  • the interests and welfare of any other person who may be affected by the outcome of the case
  • whether there are any complex factual, legal, or evidential matters that need to be decided by a court
  • whether it is in the public interest that legal aid be granted.

Being notified of the decision

Legal Services Act 2011, s 26

All applicants must be informed by letter whether their application is successful. If the application for civil/family legal aid is successful, the Legal Services Commissioner must also inform them whether they must begin repaying the grant. Applicants should contact the commissioner if they want further information about their application.

The amount granted

Legal Services Act 2011, ss 23, 28

The Legal Services Commissioner grants civil/family legal aid at standard rates depending on the nature of the case and the experience of the lawyer. The commissioner can specify a maximum amount for the particular case, and can express this in terms of a maximum number of hours, as a maximum dollar amount, or in any other way.

If circumstances require the applicant’s lawyer to do more work than the grant provides for, then in some situations the applicant or their lawyer can apply for and be granted more legal aid.

Changes in your situation

What happens if later my financial circumstances change?

Legal Services Act 2011, s 25

Anyone who applies for or who is granted civil/family legal aid must tell the Legal Services Commissioner if there is any increase in their income or disposable capital that might affect their eligibility for legal aid.

People no longer receiving legal aid must also notify the commissioner if they realise that, while they were receiving legal aid, their income or disposable capital increased by an amount that could have affected their eligibility.

Legal Services Act 2011, s 111

It is an offence to knowingly mislead or provide false information to the Legal Services Commissioner, or to fail to provide information required by the Act or regulations (for example, not notifying the commissioner of a change in circumstances). The penalty is a maximum fine of $2,000.

Note: Legal aid lawyers are obliged to inform the Legal Services Commissioner if they know of a change in their client’s circumstances that would change their eligibility for legal aid.

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